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COA rules on landowner first-impression issue

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For the first time, the Indiana Court of Appeals needed to decide whether an urban or residential landowner owes a duty to protect neighbors from damage caused by a tree falling from the landowner's property.

In J. John Marshall and Marjorie Marshall v. Erie Insurance Exchange a/s/o Cindy Cain, No. 20A03-0908-CV-366, Cindy Cain's home is next to a vacant lot owned by Marjorie Marshall, which John helped to manage. Elkhart code enforcement told them that a tree on the lot needed to come down, so John had a professional arborist inspect the tree. The arborist just visually inspected the tree and determined it didn't need to be taken down. The tree later fell onto Cain's house. Her insurer, Erie, reimbursed her for the repairs and brought a suit against the Marshalls for damages for negligent maintenance of the tree. Marjorie died before the bench trial concluded.

The trial court entered judgment in favor of Erie; John filed a motion to correct error, which the trial court denied.

John argued there was insufficient service of process upon Marjorie. Even though someone else signed the return receipt indicating the notice was received, the service by mail was effective, ruled the appellate court.

John also claimed the trial court erred in finding they owed a duty of care to Cain. Judge Margret Robb wrote it would appear the Restatement (Second) of Torts section 363 forecloses the issue of whether the Marshalls owed any duty to protect Cain from the fallen tree. But that would leave urban or residential landowners essentially powerless in the face of a neighbor who refused to remove or secure a dangerous tree just because it was a natural condition of the land. Like several other states, the appellate court adopted a reasoning that departed from the strict application of the rule in context of urban or residential property.

Living in close quarters substantially increases the risk that a falling tree will cause damage or injure someone, and similar to the problem relating to a highway - as mentioned in the Restatement rule - the reduced size of property lots in an urban or residential setting make the burden of time and money to inspect and secure trees relatively minor especially as compared to the potential damage that could result from the tree's fall, she wrote.

The appellate judges held that an urban or residential landowner has the duty to exercise reasonable care to prevent an unreasonable risk of harm to neighboring landowners arising from the conditions of trees on his or her property.

The trial court properly applied a duty of reasonable care to the Marshalls, and properly found that sufficient evidence supported the Marshalls breached that duty and that John was jointly and severally liable since he acted as Marjorie's agent in care of the lot.

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  1. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

  2. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

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